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Court of Appeals Denies Government’s Petition for Interlocutory Review of Class Certification for African-American Secret Service Agents

In re Johnson
No. 13-8002 (D.C. Cir. August 1, 2014)

by Wayne C. Heavener, Associate
Semmes, Bowen & Semmes (

Available at:

In In re Johnson, the United States Court of Appeals for the District of Columbia declined to grant an interlocutory review of class certification in an employment discrimination case against the United States Department of Homeland Security (the “Government”). The district court had granted class certification in an action where eight (8) named plaintiffs (“Plaintiffs”) — all African-Americans, who sought promotions to the GS-14 and GS-15 levels between 1995 and 2005 and were denied — sought certification for similarly situated African-American agents. The Government petitioned the Court of Appeals pursuant to the Court’s discretionary authority to review certification under Fed. R. Civ. P. 23 (f). Writing for the Court, Judge Douglas H. Ginsburg denied the Government’s petition, and held that the district court’s grant of class-certification neither raised fundamental issues unlikely to be resolved before the end of the case, nor was it manifestly erroneous.

Plaintiffs sued the Secretary of the Department of Homeland Security, alleging that the Secret Service engaged in racial discrimination and utilized a promotion procedure that had a disparate impact upon African-American agents. Plaintiffs had all bid for GS-14 or GS-15 promotions sometime between 1995 and 2005 pursuant to the Secret Service’s “Merit Promotion Plan,” and were ultimately denied. Plaintiffs also proffered statistical evidence that the Merit Promotion Plan disproportionately disqualified other African-American agents seeking GS-14 and GS-15 promotions from 1995 to 2004. Plaintiffs sought to represent a class of all similarly situated African-American Secret Service Agents for that time period. The United States District Court for the District of Columbia, pursuant to Fed. R. Civ. P. 23, certified a class consisting of African-American agents who bid for a GS-14 promotion from 1995 to 2004, as well as African-American agents that bid for a GS-15 promotion from 1995 to 2005. The Government subsequently petitioned the Court to exercise its discretion under Fed. R. Civ. P. 23 (f) to grant an interlocutory review of the Plaintiffs’ class certification. Specifically, the Government alleged that the district court’s decision was either “manifestly erroneous,” or that certification presented “an unsettled and fundamental issue of law relating to class actions” that were unlikely to be settled before the end-of-the-case review.

The Court of Special Appeals ultimately denied the Government’s petition. Rule 23 (f) provides that the “[a] court of appeals may permit an appeal from an order granting or denying class-action certification.” Fed. R. Civ. P. 23 (f). The Court recognized that it would grant an interlocutory review of class certification pursuant to Rule 23(f) when either the certification presented an “unsettled and fundamental issue” of law that was likely to “evade end-of-the case review,” or certification is manifestly erroneous. As to the former, the Court held that the Government failed to demonstrate any unsettled issue of law that would go unaddressed in class certification. The Court noted that pointing to ambiguity in the law, alone, is not sufficient to thwart certification. Rather, the Government was required to provide issues likely to evade end-of-the-case review. The Court also noted that any argument by the Government that certification created a “death-knell” scenario, i.e., raised the cost and stakes of the litigation so substantially that a rational defendant would feel irresistible pressure to settle, was undermined by the Government’s litigation resources, and the fact that the Government had “tenaciously defend[ed]” this case for fourteen (14) years.

The Court likewise rejected the Government’s argument that certification was made in “manifest error.” The Court examined each requirement for class certification: commonality, adequacy of representation, predominance, and superiority. As to commonality, the court held that each class members’ claim of employment discrimination could be moved toward resolution by answering whether the Government’s Merit Promotion Plan was discriminatory between 1995 and 2005. The Court rejected the Government’s argument that the class was not adequately represented because some class members could have been “scorers” under the Merit Promotion Plan scheme. The Court reasoned that if any class member neutrally applied the allegedly discriminatory rating system to other members, they were not themselves discriminating, and therefore had no apparent conflict of interest with the rest of the class. The Court also held that the district court was not erroneous in finding that common issues predominated over the class, as the class members sought to answer common questions concerning the presence of discrimination, or a lack thereof. Finally, the Court held that the Government failed to suggest any superior way to handle the class members’ cases that did not include class certification. Therefore, the Court ultimately denied the Government’s petition for interlocutory appellate review.